1. THE NATURE OF REPRESENTATION

By Dan Witte

Both Utah and the United States are built upon a constitutional foundation of representation within the context of a democratic republic. The Sutherland Institute applies the FARM paradigm (Flexibility, Accountability, Representation and Modularity) to assess particular educational proposals. The Representation element invites a basic question: How should an elected official properly represent the electorate?

This inquiry is more complicated than it first appears. The Framers of the U.S. Constitution clearly feared the masses, which are susceptible to a foolish, dangerous, volatile mob mentality. Ours is a representative government, not a pure democracy based upon a direct citizen referendum. At the same time, the Framers believed in a government by the people. They rejected a paternalistic, Platonic system of philosopher-kings; repudiated the divine right of kings; and required that most government officials be elected representatives by a vote of the citizenry.

How does one square this circle?

As a default, elected government officials should assume that as representatives and public servants, their job is to represent and enable electoral sentiment. This involves skillfully ascertaining the majority public will, then translating it into policy and administrative outcomes. Officials should not impose their own preferences upon voters, even in the pursuit of some minority cause or opinion that an official correctly (or often, incorrectly) believes to be more enlightened. A large majority of our civic ills could be prevented if this general default principle were consistently followed.

But serving as an elected representative entails more than simply taking a poll and then responding with a policy proposal. It is perfectly appropriate for a public official to educate the electorate through intellectual acumen, moral suasion, incisive communication, and inspirational personal example, thereby building consensus for creative policy ideas. An official who can instigate support for a previously unsupported initiative is a leader. Most officials are not leaders, but merely politicians or administrators.

Moreover, there are some limited situations where an elected representative must act at odds with contemporary public sentiment. Let us consider the most common exceptions in turn.

Bounded Rationality. Some information cannot properly be shared with the public at large. Examples of this include national security intelligence, records about individuals protected by privacy laws, and certain aspects of law enforcement investigations. Since there are certain policy decisions that flow from information unavailable to the public, there are necessarily some policy decisions for which an elected official cannot rely on public sentiments shaped by incomplete information. In such cases, citizens must elect officials of sound character, policy judgment, and administrative ability, and then trust that such officials will act accordingly in situations where the public is impeded by bounded rationality.

Exigent Circumstance. Sometimes an event occurs, or a threat emerges, requiring an immediate, informed, nimble response. Examples include invasion by a foreign power, emergency response, and natural calamity, where the worst decision is often inaction. Immediate public feedback is infeasible. As with bounded rationality, exigent circumstance tests the public’s ability to select officials of generally sound character, policy judgment, and administrative ability.

Cognitive Dissonance. Not infrequently, the electorate harbors sentiments or priorities in direct conflict, which must be reconciled to create a cohesive, feasible, comprehensive set of public policies. Often cognitive dissonance is a symptom of electoral ignorance or emotional immaturity. A classic example is the national debt: Voters have shown a preference for low taxes and prolific government spending. Ultimately, government officials have a duty to make painful choices and balance the budget. Unconstrained deficits eventually lead to uncontrollable interest obligations, civic bankruptcy and civic catastrophe. While reconciling competing interests and goals, officials should endeavor to approximate apparent overriding public priorities.

Constitutional Rule of Law. Constitutional government embodies a majoritarian choice to protect the electorate from its own temporary rash impulses, and from rash government officials. When the public sentiment temporarily veers in favor of violating a clear constitutional liberty (e.g., depriving a person of freedom of religion, due process or contract) or violating a clear structural principle of limited government (e.g., creating a U.S. Department of Education without amending the U.S. Constitution), government officials have a duty to uphold the rule of law.

Moral Recusal. Sometimes public sentiment is clear but at odds with some deeply held personal view of the official concerning ethics, morality, natural law or the like. For example, Benjamin Franklin favored abolition of slavery long before a majority of Americans were willing to adopt such a position; other examples include questions of war, abortion, human rights violations, curriculum policy, and so on. This situation is very difficult for both the candidate and the electorate. Ignoring the electorate seems paternalistic and Platonic; enabling the electorate seems weak and unprincipled; and withdrawing from public involvement serves only to deprive the electorate of meaningful leadership options.

Whenever an electoral candidate is aware of such a situation, the candidate should forthrightly inform voters about the nature of the divergence and the candidate’s proposed solution. A candidate and the electorate should mutually agree to one of the following approaches: (1) The candidate will vote and effectuate the electorate’s preference despite personal views; (2) the electorate will tolerate the candidate’s wayward efforts on one particular issue in order to procure the candidate’s services as to all the others; (3) the candidate will, if practical, invoke recusal or other avoidance strategies with regard to the issue; or (4) the divergence of opinion is so problematic that the candidate must withdraw or suffer electoral defeat.

Sometimes moral recusal unpredictably confronts a sitting official. The same four options apply in analogous form (recusal strategy can often be accommodated by actual recusal or by referring a matter to referendum, and resignation substitutes for withdrawal). Unfortunately, however, the electorate often lacks any opportunity to directly endorse the official’s proposed resolution in advance. Citizens must elect officials of sound character, policy judgment, and administrative ability; inquire into a candidate’s general philosophy about moral recusal during elections; and trust that such officials will act accordingly.

Such is the nature of representation. As we pursue education reform, it behooves us all – voters, parents, and education officials – to focus upon it.

The author, Daniel E. Witte, J.D., is director of Sutherland Institute’s Center for Educational Progress. Mr. Witte has an extensive background in issues related to parental liberty, educational choice, and organizational reform. He has worked with the Utah Supreme Court, the U.S. Attorney’s Office for the District of Utah, the 10th and 7th Federal Circuit Courts of Appeal, the U.S. Senate, and law firms in Korea, Puerto Rico and California. Mr. Witte currently practices with a large law firm, specializing in commercial litigation, commercial transactions and insurance law.

2. NEW TRANSPARENCY RESEARCH, NEW CONTEST

The latest research from Sutherland Institute, Grading City Government Transparency, gives Utah cities an average of C- for the transparency of their websites. Click here to read more.

Speaking of transparency, Utah’s 1,600 state and local government boards influence the lives of Utahns directly and indirectly, often without those citizens’ knowledge. Between now and Monday, Nov. 29, we invite you to enter to win $100 cash by finding the most obscure government board on Sutherland’s newest website, www.transparentutah.org.

To enter:

1. Go to our Transparent Utah website: www.transparentutah.org
2. Look for the most obscure board you can find
3. Send an email to RCE@sutherlandinstitute.orgwith the following information:
a. Your name and email address
b. The board or commission name
c. The city or county where the board is located (or tell us if it is a state board)
d. Why you think it is an obscure board